Olga Varshokova vs State Of Himachal Pradesh
2023 Latest Caselaw 15620 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr. MP (M) No. 1943 of 2023

Reserved on: 04.09.2023 Decided on : 07.10.2023 ____________________________________________________________

Olga Varshokova ....Petitioner

Versus

State of Himachal Pradesh ...Respondent

Coram:

The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting?1

_________________________________________________________ For the petitioner : Mr. Yadvinder Gupta and Bhupinder Singh Ahuja,

Advocates.

For the respondent : Mr. Raj Kumar Negi, Additional

Advocate General.

Sushil Kukreja, Judge

By way of instant petition, filed under Section

439 of the Code of Criminal Procedure the petitioner is

seeking bail in case FIR No. 187/2022, dated 30.10.2022,

under Section 20 of the Narcotic Drugs and Psychotropic

Substances Act (hereinafter referred to as "the Act") and

1 Whether reporters of Local Papers may be allowed to see the judgment?

Section 14 of the Foreigners Act 1946, registered at Police

.

Station Aut, District Mandi, H.P.

2. The prosecution story, in brief, is that on

30.10.2022, the police party was on routine patrolling duty

and was present at place Thalaut. At about 2:55 P.M., they

saw a bus, bearing registration No. HP65B-2838 coming

from Kullu side, which was signaled to stop. While the

police was checking the bus and reached near seat No. 14,

they saw a woman sitting there, who was carrying a bag

with her. On suspicion, the police associated driver and

conductor of the bus, namely Kesar Singh and Murari Lal

and occupants of seat Nos. 15 & 16 namely Nirmala Devi

and Sushma Kumari as independent witnesses in the

proceedings. In their presence, the woman sitting on seat

No. 14 disclosed her name as Olga Varshokova (petitioner

herein). During search of the bag of the petitioner, six

different packets, sealed with tapes were found. On

opening of the aforesaid packets, black coloured substance

was recovered, which on the basis of experience was found

to be charas/cannabis. On weighment, the recovered

contraband was found to be 2.412 Kgs. After completion of

necessary codal formalities, FIR detailed hereinabove was

.

registered against the petitioner and she was arrested.

3. The bail application has been filed by the

petitioner on the ground that she is innocent and has been

falsely implicated in the present case. The learned counsel

for the petitioner has contended that the petitioner is in

judicial custody since 30.10.2022. He further submitted

that the trial is not going to be completed in near future,

as the case is fixed for recording the statements of

prosecution witnesses No. 1 to 4 on 18.09.2023, as such,

no fruitful purpose would be served by keeping her behind

the bars for an unlimited period.

4. Per contra, the learned Additional Advocate

General opposed the bail application on the ground that

keeping in view the gravity of the offence alleged to have

been committed by the petitioner and quantity of the

recovered contraband, i.e. commercial quantity, she is not

entitled to be enlarged on bail.

5. I have heard the learned counsel for the

petitioner as well as learned Additional Advocate General

and have also gone through the record of the case and I

am of the firm opinion that the petitioner has not made out

.

a case for grant of bail, as a perusal of the record indicates

that the quantity of the charas/cannabis recovered from

the possession of the petitioner is 2.412 Kgs, which is a

commercial quantity. Since the quantity of the contraband

falls within the definition of commercial quantity,

therefore, the grant of the bail in this case is governed by

the provision of Section 37 of the NDPS Act, which reads as

under:-

"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the code of Criminal

Procedure, 1973 (2 of 1974)

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence

punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own

bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1)

.

are in addition to the limitations under the

Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

6. The Hon'ble Apex Court in the matter of The

State (NCT of Delhi) Narcotics Control Bureau Vs.

Lokesh Chadha, (2021) 5 Supreme Court Cases 724, has

held that no person accused for offences involving a

commercial quantity shall be released on bail, where the

public prosecutor opposes the application, unless the Court

is satisfied that there are reasonable grounds for believing

that he is not guilty of such offence and that he is not likely

to commit any offence while on bail. The relevant portion

of the said judgment is reproduced hereunder:-

"9. .......Section 37 of the NDPS Act

stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied "that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.................".

7. Thus, in view of the aforesaid decision of

.

Hon'ble Apex Court, unless the conditions as laid down

under Section 37 of the NDPS Act are satisfied, the bail

cannot be granted to an accused, who has been found

involved in the commercial quantity of the contraband

under the provisions of the NDPS Act. Moreover, the

limitations on granting of bail specified in clause (b) of sub-

section (1) of Section 37 of the NDPS Act are in addition to

the limitations under the Code of Criminal Procedure. In

the instant case, the quantity of the charas/cannabis, is

2.412 Kgs, however, the petitioner has failed to satisfy the

conditions for grant of bail, as provided under Section 37

of the NDPS Act.

8. Learned counsel for the petitioner next

contended that there is total non-compliance of mandatory

provision of Section 52(A) of the NDPS Act, as no samples

of alleged contraband were drawn in the presence of the

Judicial Magistrate, rather, the case property was opened

in the Court as per the story of the prosecution. Thus, he

submitted that since the provisions of Section 52(A) of the

NDPS Act are mandatory in nature, at this stage, non-

.

compliance thereof entitles the petitioner to be released

on bail. He also submitted that the link evidence is totally

missing in the present case as the case property was not

deposited in the Malkhana register at the relevant time

and NCB columns No. 9, 10 and 11 were not filled.

However, these contentions raised by learned counsel for

the petitioner cannot be decided at the stage of deciding

the present bail application and the same can only be

decided after leading of the evidence by the prosecution.

9. The learned counsel for the petitioner lastly

contended that the petitioner is in judicial custody since

30.10.2022 and no prosecution witness has been

examined till 18.09.2023, as such, being a woman, she

deserves to be released on bail on the ground of delay in

trial. Although, Article 21 of the Constitution of India

guarantees speedy trial and an under trial prisoner cannot

be detained in jail/custody for an indefinite period,

however, merely because of the fact that the petitioner is

in custody for the last about one year is no ground to grant

her bail, particularly in view of the fact that she has been

allegedly found in possession of 2.412 Kgs of

.

charas/cannabis. Hence, for the reasons mentioned above,

the bail application filed by the petitioner is dismissed.

However, taking into consideration the fact that the

petitioner is a woman and is behind the bars since

30.10.2022, the learned trial Court is directed to conclude

10. to the trial on or before 30th April, 2024.

Be it stated that any expression of opinion

given in this order does not mean an expression of opinion

on the merits of the case and the trial Court will not be

influenced by any observations made therein.

( Sushil Kukreja ) Judge

October 07, 2023 (raman)